Specialist Diagnostic Services Pty Ltd v Pandya
[2025] NSWPICPD 28
•1 April 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Specialist Diagnostic Services Pty Ltd v Pandya [2025] NSWPICPD 28 |
APPELLANT: | Specialist Diagnostic Services Pty Ltd |
RESPONDENT: | Divyaben Nilesh Pandya |
INSURER: | Healius Limited |
FILE NUMBER: | A1-W1692/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 1 April 2025 |
ORDERS MADE ON APPEAL: | 1. Determination [3] and Order [1] of the Member’s Certificate of Determination dated 27 May 2024 are revoked. 2. The Member’s Certificate of Determination is otherwise confirmed. 3. The issue as to whether the surgery proposed by Dr Nair is reasonably necessary as a result of the injuries is remitted to a different non-presidential member for re-determination. 4. The respondent (the applicant below) is to lodge with the Commission and serve on the appellant (the respondent below) an amended Index to the Application to Resolve a Dispute with attached annexures limited to the evidentiary documents that are relevant to the issues in dispute in this case within 21 days of the issue of this decision. |
CATCHWORDS: | WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987 – whether proposed surgery reasonably necessary – Diab v NRMA Ltd [2014] NSWWCCPD 72; Rose v Health Commission (NSW) [1986] NSWCC 2; Bartolo v Western Sydney Area Health Service (1997) 14 NSWWCCR 233 discussed – failure to respond to clearly articulated submissions – Wang v State of New South Wales [2019] NSWCA 263 discussed and applied – failure to provide adequate reasons – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 – discussed and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Murray, solicitor | |
| Integroe Partners | |
| Respondent: | |
| Mr R Hanrahan, counsel | |
| Lionheart Lawyers | |
DECISION UNDER APPEAL: | Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278 |
MEMBER | The Honourable L Drake |
DATE OF MEMBER’S DECISION: | 27 May 2024 |
INTRODUCTION AND BACKGROUND
Ms Divyaben Nilesh Pandya (the respondent) was employed by Specialist Diagnostic Services Pty Ltd (the appellant) as a pathology collector from April 2013 and in 2018 was promoted to the position of Area Coordinator. The respondent reported experiencing increasing neck pain and pain into the right shoulder in the course of her employment and those symptoms significantly deteriorated on 17 April 2019 after she had manually lifted and carried printing machines.
These proceedings concern the respondent’s claim for payment of proposed surgery to the cervical spine in the form of a spinal decompression and fusion at the C5/6 and C6/7 levels of the spine, as well as associated surgical procedures recommended by Dr Anil Nair, spinal surgeon, quoted to cost $15,468.75. The appellant disputed that the proposed surgery was reasonably necessary as a result of the alleged injury.
The dispute proceeded to arbitration before a Member of the Commission. The Member issued a Certificate of Determination on 27 May 2024 in which she determined that:
(a) the respondent suffered an injury to her neck in the form of an aggravation, acceleration, exacerbation or deterioration of a degenerative condition as a result of the nature and conditions of her employment and on 17 April 2019;
(b) the respondent’s employment was the main contributing factor to her present incapacity, and
(c) the surgical intervention recommended by Dr Nair was reasonably necessary as a result of the injury.
The Member entered an award in favour of the respondent for treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), including the costs of and incidental to the proposed surgery.
The appellant appeals the Member’s decision, but only in respect of her determination that the proposed treatment was reasonably necessary as a result of the injury.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties agree that the appeal can be determined on the basis of the documentary evidence and their submissions, and that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The respondent seeks to adduce further evidence in the appeal in the form of a report from Dr Renata Abraszko, neurosurgeon, dated 2 September 2021. For the reasons set out below, the Member’s determination that the proposed surgery was reasonably necessary is revoked, and the matter is to be remitted to a different non-presidential member for re-determination of that issue. It is therefore not necessary to consider whether the report of Dr Abraszko should be admitted in the appeal.
THE EVIDENCE
Given the narrow scope of the appeal, it is not necessary to summarise the whole of the evidence before the Member.
The respondent’s statement
The respondent provided a statement dated 18 January 2024.[1] She advised that she commenced employment with the appellant in April 2013, working as a pathology collector until April 2018, when she was promoted to the position of Area Coordinator. She described the duties she was required to perform in both roles and also the duties she performed on 17 April 2019. She said that she had not experienced any neck symptoms prior to commencing employment with the appellant.
[1] Application to Resolve a Dispute (ARD), pp 1–7.
The respondent described the onset of neck and right shoulder pain soon after commencing work with the appellant and the deterioration of those symptoms following the requirement for her to lift and carry heavy printing machines on 17 April 2019. She said that she consulted her general practitioner, Dr Vidya Shetty in 2016. She added that in February 2019 her pain had become unmanageable, and Dr Shetty arranged for her to undergo an MRI scan. She said that she was referred to Dr Prashant Rao, neurosurgeon, who advised her that her pain was emanating from the C3/4 and C4/5 levels of her cervical spine. She advised that she attended a number of specialists and received physiotherapy and hydrotherapy treatment, as well as cortisone injections into the neck, which provided some relief but after a few months, the pain returned.
The respondent stated that in April 2021, she was referred by Dr Ijaz Khan, general practitioner, to Dr Anil Nair, spinal surgeon who, at a consultation in October 2022 suggested that surgery was the only available option. She said that she also saw Dr Jonathan Herald, orthopaedic surgeon, who recommended arthroscopy of the right shoulder. She said that she was keen to proceed with both surgeries.
The respondent described her ongoing symptoms and disabilities. She advised that there was nothing she was doing other than the work with the appellant that would have precipitated her symptoms.
The medical evidence from the treatment providers
Dr Shareef Dowla, neurologist
Various records of the respondent’s consultations with and treatment by Dr Dowla were in evidence.[2] The first record of relevance was a referral from Dr Shetty to Dr Dowla dated 5 May 2016 for the purpose of undergoing nerve conduction studies of both upper limbs. Right carpal tunnel syndrome was noted on the referral.[3]
[2] ARD, pp 291–326.
[3] ARD, p 292.
On 7 June 2016, Dr Dowla reported to Dr Shetty in respect of a subsequent referral. He noted a two-year history of intermittent paraesthesia and numbness in her right hand, which was associated with right sided neck pain. He advised that a nerve conduction study disclosed that there was no evidence of neuropathy or radiculopathy and opined that a cervical root irritation was likely. He recommended an MRI scan be performed.[4]
[4] ARD, p 304.
On 12 July 2016 Dr Dowla advised Dr Shetty that the respondent’s symptoms had not changed and were exacerbated particularly when she was making dough and halua (a confectionary). He said that the respondent had no neurological signs and that the MRI scan of the cervical spine showed “no correlation”, there was “reversal of lordosis and bilateral foraminal stenosis at C4/5 and C5/6 level.” He concluded that no specific cause of her symptoms had been found but it would likely be due to “cervical root irritation”. He recommended she be gentler with “dough making or any physical work.”[5]
[5] ARD, p 305.
Dr Dowla reviewed the respondent again on 23 June 2020. He recorded the history of exacerbation of the respondent’s neck pain with radiation into the right arm after lifting a heavy printer in 2019. He noted that an MRI scan of the cervical spine undertaken on 23 May 2019 showed multilevel degenerative changes with narrowing of the cervical spine and neural exit foramina. He opined that a cervical nerve root irritation was likely.[6]
[6] ARD, pp 306–307.
Between 23 June 2020 and 28 May 2021, Dr Dowla reported to Dr Hemant Kumar, general practitioner, in relation to several further nerve conduction studies, which he considered showed no evidence of neuropathy or radiculopathy. He again diagnosed the respondent’s condition as a likely cervical root irritation.[7] On 27 August 2021, he advised Dr Kumar that the MRI scan dated 21 May 2021 showed multilevel degenerative changes, with narrowing of the cervical canal at the C5/6 and C6/7 levels, causing flattening of the cervical cord. He expressed the view that the respondent’s symptoms related to cervical radiculopathy and myelopathy and that the respondent required neurosurgical intervention.[8] He confirmed that view in a report to Dr Kumar on 8 December 2021, in which he also suggested that the respondent may benefit from radiofrequency ablation.[9]
[7] ARD, pp 306–314.
[8] ARD, pp 315–316.
[9] ARD, pp 317–318.
Mr Shane Cassel, exercise physiologist
The respondent attended Mr Cassel, who reported to Dr Kumar on 6 November 2019.[10] Relevant to the issues in dispute, Mr Cassel observed that the respondent’s pain scores had fluctuated over the previous 8 weeks, especially after using her right arm at work on a busy day, with the pain originating high in the neck and travelling through the shoulder and arm to the little and ring fingers of the right hand. He said that the symptoms were similar to cervical radiculopathy. He reported that the respondent had received an injection into the C5/6 foraminal space, which took about a week to have a positive impact on the pain. He said that the numbness and tingling decreased for about two weeks, however the pain and neurological symptoms subsequently returned to the previous levels.
[10] ARD, pp 493–494.
Dr Prasanth Rao, neurosurgeon and spine surgeon
Dr Rao reported to Dr Vidya Shetty on 8 May 2019.[11] He recorded a history of the respondent having experienced chronic neck pain since 2011, worsening in 2014, and the development of right sided radiculopathy in 2015/2016 in the context of further worsening neck pain. Dr Rao referred to an MRI scan arranged by Dr Shetty undertaken in February 2019. He observed that the scan revealed a kyphotic cervical spine at the C3 to C7 levels, which was a similar finding to a previous finding in 2016. He noted that there were modic changes at the C3/4 level and lost disc height between the C3 and C7 discs. He diagnosed “cervical spondylosis causing radicular pain and weakness potentially related to kyphotic posture.” He recommended a number of investigations be undertaken and advised that the respondent should wear a soft collar at work and avoid keeping her head in a fixed position during her working day.
[11] Reply to Application to Resolve a dispute (reply), pp 24–27.
Dr Rao reported to Dr Hemant Kumar on 27 May 2019.[12] He advised that bone scans revealed mild discovertebral uptake at C3/4 and C4/5 levels which was contributing to the respondent’s kyphosis. He said the bone scans confirmed a degree of arthritis at those levels, potentially causing the kyphosis and the neck pain. He suggested the respondent should trial wearing a hard collar and undergo cortisone injections into the facet joints of the C3/4 and C4/5 levels in order to evaluate the respondent’s neck pain. He said that if the cortisone injections were successful, that may confirm that surgical intervention could help.
[12] Reply, p 28.
Dr Rao was asked to provide answers to queries raised by the appellant. In his response dated 19 June 2019, Dr Rao diagnosed the respondent as suffering from cervical spondylosis. He advised that the respondent’s right arm pain was related to the “original” disc degeneration at the C3/4 and C4/5 levels of the spine, as confirmed by the bone scan and the diagnostic cortisone injections. He expressed the view that the “work injury might have contributed to her issues which have existed since 2013 but worsened recently.” He acknowledged that a diagnosis had been difficult to assess.[13]
[13] Reply, pp 29–31.
Dr Rao again reported to Dr Kumar on 1 July 2019,[14] He advised that the respondent enjoyed reduction in the pain for 4–5 days in respect of the C3/4 injection, but the C4/5 injection made no difference. He said that the situation was complex, and he was not sure of the source of her multiple symptoms but considered that there was significant evidence that the C3/4 and C4/5 levels were mainly responsible for her neck and arm symptoms.
[14] ARD, p 405.
Dr Rao provided a further report dated 14 November 2019, directed to “UHG” in response to certain questions posed by the respondent’s former solicitors.[15] He diagnosed the respondent as suffering from cervical spondylosis due to C3/4 and C4/5 degeneration, which was pre-existing, and caused ongoing significant pain. He said that he was unsure of whether the respondent’s employment was the main contributing factor but thought that her employment may have aggravated the spondylosis. He expressed the view that he disagreed with the appellant’s medical expert, Dr Casikar, that cervical spondylosis was not relevant to the respondent’s symptoms.
[15] ARD, pp 409–411.
On 23 December 2019, Dr Rao reported to Dr Kumar that the respondent was “doing quite well at this point in time” and that “[t]he consensus at Macquarie Spinal Clinic was to manage her conservatively” with ongoing physiotherapy. He advised that she should return for review if there were any issues.[16]
[16] Reply, p 32.
Dr Tim Ho, rehabilitation specialist
Dr Ho reported to Dr Nair on 10 November 2021.[17] He referred to the respondent as having a “positive” diagnostic perineural block bilaterally at the C5/6 and C6/7 levels with an 80% reduction in pain over the following week.
[17] ARD, pp 704–705.
On 2 November 2022, Dr Ho again reported to Dr Nair in relation to the respondent’s neck pain and bilateral upper limb pain ‘secondary to spondylosis and cervical radicular pain.” He noted that the respondent was awaiting spinal surgery. He described the respondent’s complaints and difficulties and made recommendations in respect of ongoing treatment options. He did not offer an opinion in respect of the proposed surgery. [18]
[18] ARD, pp 417–418.
Dr Jonathan Herald, orthopaedic surgeon
Dr Herald reported to Dr Ijaz Khan on 17 May 2021. He observed that the respondent suffered from multilevel disc disease from about the C4 to C7 levels with disc prolapses from C3/4 to C6/7 and spinal and neural compression at those levels. He noted that the respondent had tried physiotherapy, hydrotherapy, and exercise physiology, had three cortisone injections and was on medication. He was concerned about the respondent having canal stenosis and recommended that the respondent see a neurosurgeon and undergo a cervical decompression.[19]
[19] ARD, pp 225–226.
Dr Anil Nair, spinal surgeon
On 24 November 2022, Dr Nair wrote to the appellant in respect of his recommendation that the respondent undergo cervical surgery. He advised that the procedure would involve a C5/6 and C6/7 anterior cervical discectomy and fusion.[20]
[20] ARD, p 97.
Dr Nair provided a report directed to the respondent’s legal representatives dated 14 December 2023.[21] He advised that the respondent first consulted him on 25 May 2021 with complaints of mechanical and radicular symptoms referrable to a work injury. He noted that the respondent was experiencing guarding and restriction of movement of the cervical spine and pain radiating distally through her upper limbs. On the basis of the clinical and radiological evidence, he diagnosed the respondent as having cervical disc herniations and foraminal stenosis.
[21] ARD, pp 50–51.
Dr Nair indicated that the respondent’s employment was a substantial contributing factor to the condition, explaining that she was asymptomatic prior to commencement of her employment with the appellant and then experienced symptoms that were consistent with the development of cervical degenerative disease. Dr Nair referred to the quotation issued by him in respect of the proposed surgery, which involved a spinal decompression and fusion. He was of the opinion that the surgery was “reasonable and necessary” and was likely to improve the respondent’s function. He noted the divergent opinions of Dr Keller, Dr Casikar and A/Prof Geevasinga. He noted that Dr Keller was an occupational physician, that Dr Casikar did not provide clinical treatment, and that A/Prof Geevasinga was a neurologist rather than a neurosurgeon. He expressed the view that the differences in specialities accounted for the divergent opinions.
Dr Nair provided the quotation for the costs of and incidental to the surgery.[22]
[22] ARD, pp 52–53.
Associate Professor Nimeshan Geevasinga, consultant neurologist
The respondent was referred to A/Prof Geevasinga by Dr Nair. A/Prof Geevasinga reported to Dr Nair on 9 July 2021.[23] He recorded a detailed account of the respondent’s symptoms, the treatment she was provided and the investigations undertaken. He noted the incident on 17 April 2021 involving the removal and replacement of the printing machines.
[23] Reply, pp 57–60.
A/Prof Geevasinga observed that an MRI scan that had recently been performed disclosed that there was degenerative disease at the C4/5, C5/6 and C6/7 levels of the spine, with moderate canal and foraminal stenoses at C5/6, as well as mild to moderate canal and foraminal stenosis at the C4/5 level. He expressed the view that it was difficult to be conclusive about the cause of the respondent’s symptoms, and that he was not convinced that the presentation was consistent with an organic disorder resulting from the degenerative cervical disease. He considered that the respondent’s complaints suggested widespread myotome dysfunction from the C5 level to the C8 level of the cervical spine which was not consistent with the MRI findings. He thought that there may be a degree of psychogenic overlay to her presentation. He suggested that, from a neurological perspective, consideration might be given to a repeat nerve conduction study and an electromyography test, otherwise he advised the respondent that she should leave the management of her degenerative disease in her cervical spine to Dr Nair.
The radiological and diagnostic evidence
Dr Dowla arranged for the respondent to undergo an MRI scan of the cervical spine on 25 June 2016.[24] The radiologist identified the following pathology:
(a) a reversal of the normal cervical lordosis at C4/5 level;
(b) the C3/4 disc was desiccated;
(c) at the C4/5, there was a small discovertebral complex indenting the ventral sac and uncovertebral osteophytes causing foraminal stenosis;
(d) the C5/6 disc showed a discovertebral complex indenting the ventral sac with bilateral foraminal stenoses, and
(e) there was a small discovertebral complex indenting the ventral sac at C6/7 without central canal compromise and the exiting nerves passed freely.
[24] ARD, pp 289–290.
A bone scan requested by Dr Rao dated 9 May 2019 disclosed that there was mild tracer uptake at the C3/4 and C4/5 discovertebral joints. The radiologist concluded that there was mild C3/4 and C4/5 discovertebral joint arthritis.[25]
[25] Reply, p 65.
An MRI scan of the cervical spine was performed on 23 May 2019 at the request of Dr Kumar. It disclosed a small disc protrusion at C2/3, moderate sized protrusions with disc opsteophyte complex, and flattening of the spinal cord at C3/4, C4/5 and C5/6, and a C6/7 moderate central disc protrusion with mild indentation of the thecal sac.[26]
[26] Reply, pp 70–71.
Dr Kumar arranged for the respondent to undergo a CT scan of her cervical spine on 21 April 2021. The scan disclosed disc bulges and other degenerative changes from the C2/3 through to the C6/7 levels, and the discs at the C4/5, C5/6 and C6/7 were indenting the spinal canal, with foraminal stenosis at the C5/6 level. The radiologist’s conclusion was that there was cervical spondylosis particularly at the C3 to C6 levels resulting in “mild narrowing of the canal as a result of the disc osteophyte complexes.”[27]
[27] ARD, pp 134–135.
Dr Jonathan Herald arranged for the respondent to undergo an MRI scan of the cervical spine at the C2/3 to C7/T1 levels of the spine. The radiologist reported on the scan on 24 May 2021, describing multilevel spondylotic changes, most marked at the C5/6 level with potential irritation of the C6 nerve root. The radiologist commented that the overall appearances had not significantly changed when compared to the study undertaken on 23 May 2019.[28]
[28] ARD, pp 136–137.
Dr Kumar and Dr Rao arranged for the respondent to undergo bilateral C3/4 facet joint injections on 14 June 2019,[29] bilateral C4/5 facet joint injections on 19 June 2019[30] and a CT guided right C5/6 foraminal injection on 5 September 2019.[31]
[29] ARD, p 149.
[30] ARD, pp 152–153.
[31] ARD, pp 154–155.
As noted above, Dr Tim Ho, wrote to Dr Nair on 10 November 2021.[32] He referred to the respondent as having a diagnostic perineural block bilaterally at the C5/6 and C6/7 level with an 80% reduction in pain over the following week.
[32] ARD, pp 704–705.
An MRI scan was performed at the request of Dr Dowla on 1 July 2022.[33] The radiologist concluded that there was:
(a) cervical spondylosis from the C3/4 level to C6/7;
(b) cord flattening, disc protrusions and osteochondral bar at the C3/4 to C5/6 levels;
(c) narrowing of the left C5 and C6 neural foramina, and
(d) an osteophyte and disc protrusion with annular tear indenting the thecal sac with spinal cord stenosis at the C5/6 level.
The forensic medico-legal evidence
[33] ARD, pp 277–278.
Dr Andrew Keller, occupational physician
Dr Keller examined the respondent at the request of the appellant and provided a report dated 1 December 2021.[34]
[34] Reply, pp 1–8.
He recorded a history of the injury on 17 April 2019 and the medical investigations that followed. He noted that the respondent was referred to Dr Rao in May 2019, who considered that the cause of respondent’s condition was cervical spondylosis and had offered the respondent three cortisone injections that provided only temporary relief. Dr Keller observed that nerve conduction studies in March 2021 and May 2021 were normal and that the MRI scan performed in May 2021 disclosed spondylosis with moderate foraminal narrowing. He also observed that Dr Dowla had reviewed the respondent on 28 May 2021, found no nerve compression and considered that the respondent’s condition was functional, but a repeat nerve conduction study dated 6 August 2021 showed mild right ulnar nerve dysfunction at the elbow level.
Dr Keller reviewed the respondent’s past medical history, recording that the respondent reported no cervical pain prior to February 2019. He provided a summary of the respondent’s symptoms and disabilities, and details of his physical examination of the respondent. He observed that the respondent’s sensation to light touch spread across multiple dermatomes, could not be explained anatomically and could not be caused by nerve compression in the cervical spine. He added that the restrictions displayed in both shoulders could not be explained by the available investigation reports, and the similar circumferences of both arms were not consistent with the respondent’s complaints of an inability to use her right arm. He reported that the respondent displayed fully symmetrical range of motion of her thoracic and lumbar spine. He said that that result, together with the results of the examination of the respondent’s reflexes, straight leg raising, and plantar and dorsiflexion of both ankles were inconsistent with the respondent’s claimed disabilities.
Dr Keller opined that it was plausible that in the incident in April 2019 when the respondent was carrying the printer she would have suffered a soft tissue strain to the muscle of the right trapezius causing pins and needles in the right hand, or a temporary exacerbation of her cervical spondylosis. He said, however, that the respondent’s presentation was not consistent with such an injury and was not explained by the many investigations performed. He pointed out that the opinions of Dr Dowla and A/Prof Geevasinga were that the respondent’s condition was functional, and her presentation was inconsistent with an organic disorder. He concluded that the respondent’s presentation was not consistent with any lasting musculoskeletal injury following the incident in April 2019. He described that injury as a possible temporary strain of the cervical spine or right trapezius muscle with no consistent signs of right arm radiculopathy. He did not consider that the respondent’s employment was the main contributing factor to her current symptoms and reported disabilities.
Dr Vidyasagar Casikar, consultant neurosurgeon
Dr Casikar provided a report dated 3 September 2019 at the request of the appellant.[35] He described duties performed by the respondent in removing and replacing a facsimile/print machine during which the respondent experienced the onset of right sided neck pain extending into the right arm. He noted that the respondent attended her general practitioner, Dr Shetty, but did not want it recorded that she had suffered a work injury, however, she subsequently reported the injury to Dr Patel, a general practitioner from the same medical practice, who assisted her in making a claim.
[35] Reply, pp 39–47.
Dr Casikar summarised the treatment provided to the respondent thereafter, including that Dr Rao had organised four injections into the neck. He also summarised the difficulties experienced by the respondent. He performed a physical examination of the respondent, observing that the respondent complained of neurological symptoms in her right forearm, but those symptoms could not be confirmed on examination. He recorded that movements of the right shoulder were significantly reduced.
Dr Casikar reviewed the radiological investigations of the cervical spine. He said that the MRI scan dated 23 May 2019 disclosed cervical spondylosis with osteophyte complex at the C5/6 segment on the left side. He commented that the respondent’s symptoms were right-sided. He said that the bone scan dated 9 May 2019 showed degenerative changes in the cervical spine. Dr Casikar added that an ultrasound of the right shoulder dated 14 May 2019 disclosed mild bursitis.
Dr Casikar diagnosed a soft tissue injury to the right shoulder in the form of an aggravation of pre-existing shoulder pathology and said that the cervical spondylosis was an incidental finding. He recommended physiotherapy to the shoulder and a cortisone injection. He was of the view that the symptoms were not related to the cervical spondylosis, so that physiotherapy to the neck was not appropriate and would aggravate the pre-existing degenerative disease of the cervical spine. He concluded that “[i]t would be inappropriate to find an obscure neurological diagnosis when the most obvious clinical evidence is a soft tissue injury to the shoulder.”[36] He proceeded to advise in respect of appropriate treatment for the respondent’s shoulder condition and the prospects of the respondent returning to work.
[36] Reply, p 44.
Dr Casikar again reported to the appellant on 1 November 2021.[37] He recorded details of the further treatment undergone by the respondent since his last report. He observed that the respondent had an almost frozen shoulder, and that neurological examination was non-diagnostic. He noted an MRI scan of the cervical spine performed on 21 May 2021 showed multi-segment degenerative disease. He repeated his earlier opinion that the cervical spondylosis was a constitutional degenerative disease and that her symptoms were not related to that pathology. He indicated that he did not support the opinions of the various specialists who considered that surgery to the cervical spine was appropriate.
[37] Reply, pp 50–56.
Dr Uthum K Dias, occupational physician
Dr Dias was asked to provide an opinion in respect of the respondent’s injuries and capacity for work. Relevantly, in his report dated 12 November 2019,[38] Dr Dias noted that the respondent had:
“undergone bilateral facet joint injections at the C3/C4 level, and then at the C4/C5 level, in June 2019. More recently, she underwent a right-sided transforaminal injection at the C5/C6 level, on 5th September 2019. All injections led to approximately one to two weeks of transient partial relief before her symptomatology returned to baseline.”[39]
[38] ARD, pp 71–89.
[39] ARD, p 77.
Dr Dias added:
“In my opinion, [the respondent’s] constitutional degenerative changes in her cervical spine region contribute approximately 10% to her current symptomatology and disabilities with respect to her cervical spine. It should be noted that [the respondent’s] cervical spine condition was largely asymptomatic prior to the commencement of her employment with [the appellant] in April 2013, based on the available evidence. In my opinion, [the respondent’s] employment (the nature and conditions of employment and the frank incident of 17th April 2019), was and remains the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of [the respondent’s] cervical spine condition.[40]
[40] ARD, p 84.
Dr James Bodel, orthopaedic surgeon
Dr Bodel assessed the respondent at the request of the respondent’s legal representatives. He provided a report dated 20 April 2023.[41] He briefly summarised the respondent’s employment duties and noted that she developed the gradual onset of neck and right shoulder symptoms soon after commencement of her employment but that she did not report the symptoms to her general practitioner, Dr Shetty, until 2016, when the symptoms became worse. He recorded that Dr Shetty arranged an MRI scan of the cervical spine and referred the respondent to a neurologist, Dr Dowla. He further recorded that the respondent continued to work and in about September 2018, the pain began to spread into the region of her right shoulder. He said that she sought treatment from Dr Shetty, who organised an ultrasound which showed evidence of bursitis. He noted that the pain settled following a cortisone injection, but did not resolve.
[41] ARD, p 59–68.
Dr Bodel recorded that by February 2019, the respondent’s pain became unbearable. He said she complained of constant pain in the neck and right shoulder girdle. He noted that, in March 2019, the respondent underwent a further MRI scan of the cervical spine and was again provided with physiotherapy. Dr Bodel took a consistent history of the work activities conducted on 17 April 2019 in which the respondent’s symptoms were aggravated, after which she developed further symptoms of numbness and tingling.
Dr Bodel noted that the respondent was subsequently referred to Dr Rao and referred again to Dr Dowla, who arranged nerve conduction studies which Dr Bodel thought suggested that there was some nerve root irritability in the cervical spine and not a peripheral nerve lesion involving the median or ulnar nerve. Dr Bodel also recorded that the respondent consulted Dr Kumar and Dr Khan.
Dr Bodel took the history that the respondent continued to work until she resigned in December 2020 and continued to suffer neck pain and pain in the right shoulder and arm. He said that the respondent then consulted Dr Nair, who offered spinal injections (which relieved the pain for about one month) and eventually offered surgery in the form of a cervical decompression and fusion at the C5/6 and C6/7 levels of the spine. He added that the respondent had also consulted Dr Herald who offered an arthroscopy of the right shoulder. He noted that liability for both surgeries was disputed.
Dr Bodel recorded the respondent’s current complaints of pain in the neck and right shoulder, with referred pain down the right arm to the ring and little fingers of the right hand. He noted she struggled with household activities and driving. He performed a physical examination of the respondent and reviewed an x-ray of the cervical spine dated 1 July 2022, an MRI scan of the right shoulder dated 4 March 2022, and an MRI scan of the cervical spine dated 1 July 2022. In particular, he noted that the MRI of the cervical spine revealed widespread degenerative changes at the C3/4,C4/5, C5/6 and C6/7 levels of the cervical spine with no definite nerve root compromise of either side.[42]
[42] ARD, p 63.
Dr Bodel was of the view that there was extensive asymptomatic degenerative disc disease which had from 2013 become increasingly symptomatic over the course of the respondent’s employment, with a significantly material change in pathology when performing the work on 17 April 2019. He said that she also required treatment for the right rotator cuff pathology. He referred to the MRI scan of the cervical spine dated 23 May 2019, which he said showed multilevel degenerative disc disease but no nerve root compromise and noted that the ultrasound of the right shoulder showed bursitis and tendonitis.
Dr Bodel disagreed with the view of Dr Kumar that the respondent could return to work. He noted that both Dr Nair and Dr Herald had recommended surgery and that the respondent was keen to undergo that treatment. He considered that both the proposed cervical surgery and the shoulder surgery were reasonably necessary and that there was a good chance that the neck condition would be significantly improved by the proposed surgery. He commented that consideration of the right shoulder treatment should be a little more guarded because there was an element of adhesive capsulitis. He added that the surgeries would “hopefully” improve the respondent’s function to sufficiently enable her to return to a graded return to work.
THE MEMBER’S REASONS
The Member recorded a short history of the respondent’s employment and the gradual onset of cervical and right arm symptoms which became significantly worse when the respondent was involved in heavy lifting on 17 April 2019. She noted that the respondent resigned her employment in December 2020 and had made an unsuccessful return to work for one month in 2021. The Member observed that the respondent wished to proceed with the surgery recommended by Dr Nair and sought an order for payment of the costs of that proposed surgery. The Member identified that the appellant had declined liability for the surgery.
The Member summarised the respondent’s evidence as to the onset of symptoms and the worsening of those symptoms on 17 April 2019 when she was moving the printing machine. The Member also summarised the opinion provided by Dr Nair that the proposed surgery was “reasonable and necessary” and was likely to improve the respondent’s function. The Member quoted from Dr Nair’s report in which he considered the opinions of Dr Keller, Dr Casikar and A/Prof Geevasinga.
The Member reproduced a large extract from the report of Dr Bodel and his conclusion that there was a direct link between the nature of the respondent’s employment, including the work performed on 17 April 2019, and the aggravation, acceleration, exacerbation and deterioration of the respondent’s degenerative disc disease and right shoulder pathology. She further reproduced the passage from Dr Bodel’s report in which he opined that the proposed surgery to the cervical spine was reasonably necessary and would provide a good opportunity for improvement in the neck symptoms, and that the proposed right shoulder surgery was reasonably necessary, but the prospects of improvement were guarded.
The Member referred to the respondent’s ongoing symptoms and difficulties and the treatment the respondent was receiving. She extracted paragraphs of the respondent’s statement in which the respondent described her ongoing difficulties and restrictions and her desire to be able to move on from her injuries. The Member noted that the appellant had denied liability in correspondence dated 20 December 2021 and had given lengthy reasons as to why the claim was disputed in correspondence. She took the view that there was “no purpose to be served by repeating those reasons”.[43] The Member acknowledged that the appellant relied upon the opinions of Dr Keller and A/Prof Geevasinga and “the divergence of medical opinion held by the [respondent’s] treating doctors.”[44]
[43] Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278 (reasons), [19].
[44] Reasons, [19].
The Member provided a short summary of the respondent’s submissions. She turned to the appellant’s submissions, which she summarised as follows:
“The [appellant] submits that the [respondent’s] condition most likely predated her employment with the [appellant]. In support of this submission the [appellant] refers to the clinical notes of her general practitioner which note her advice that this condition occurred in 2012, not 2013 as indicated by the [respondent]. The [appellant] notes a similar inconsistency in the history obtained by Dr Rao.
The [appellant] also submits that the [respondent] did not attribute responsibility for her condition to the [appellant] when seeking treatment from her general practitioner. She sought treatment but [did] not attribute responsibility. Counsel submits this is inconsistent with the [respondent’s] history of a gradual onset and acceleration of symptoms whilst at work.
In summary the [appellant] submits that this is an application with a complicated medical causation issue involving conflicting medical opinions and that in these circumstances the Commission would have difficulty in finding injury in the course of employment or that the recommended treatment was reasonably necessary.”[45]
[45] Reasons, [22]–[24].
The Member referred to the evidence provided by the respondent as to the exhaustive conservative treatment already received and the respondent’s desire to undergo surgical intervention. She accepted the respondent’s evidence as to the development of her symptoms. She did not consider it significant that the respondent had reported symptoms to her general practitioner prior to 2013 and had not complained to her general practitioner that her employment was responsible for her symptoms. The Member was of the view that, even if the general practitioner’s clinical notes were reliable, the respondent was not required to be entirely accurate in the history she provided. The Member considered that it was also not significant that the respondent complained of experiencing symptoms when performing domestic tasks such as breadmaking. The Member observed that the fact that the respondent experienced symptoms while performing domestic tasks was also not significant and was simply evidence that pain can arise when performing any such movements.
The Member advised that she had considered the conflicting medical evidence in the case. She determined that the evidence as to the respondent’s posture having contributed to the condition was not sufficient to reject Dr Nair’s opinion in circumstances where there was “no persuasive reason to doubt the honesty and history of the injured worker.”[46]
[46] Reasons, [30].
The Member observed that while the medical evidence was complex and there was a divergence of opinion and differing diagnoses, that was not a sufficiently persuasive reason to refuse the respondent the possibility of receiving beneficial treatment recommended by the respondent’s treating specialists and Dr Bodel.
The Member determined that she was satisfied that the respondent suffered a neck injury as a consequence of her duties in her employment, including the duties on 17 April 2019, that the injury was an aggravation, acceleration, exacerbation or deterioration of an underlying degenerative condition and that the respondent’s employment was the main contributing factor to her “present incapacity.” She was further satisfied that the surgery proposed by Dr Nair was reasonably necessary and arose from the injury.
The Certificate of Determination issued on 27 May 2024 records:
“The Commission determines:
1. The [respondent] suffered a neck injury as a result of the nature and conditions of her employment throughout her employment including the lifting incidents which occurred on 17 April 2019.
2. The [respondent’s] underlying degenerative condition was aggravated, accelerated, exacerbated or deteriorated in the course of her employment.
3. The surgical intervention recommended by Dr Nair, the [respondent’s] treating specialist, is reasonably necessary and arises from the injury suffered by the [respondent] from the nature and conditions of her employment throughout her employment, including the lifting incidents which occurred on 17 April 2019.
4. The [respondent’s] employment with the [appellant] was the main contributing factor to her present incapacity.
The Commission orders:
1. There will be an award in favour of the [respondent] for the payment of s 60 expenses incurred for the treatment of an injury sustained to the [respondent’s] neck in the employ of the [appellant], including the payment for surgery and ancillary treatment recommended by Dr Nair.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal as follows:
(a) Ground One: Error of law in failing to respond to clearly articulated arguments;
(b) Ground Two: Error of law in failing to provide adequate reasons, and
(c) Ground Three: Error of law in failing to address the appellant’s submissions as to whether the treatment claimed was ‘reasonably necessary’.
LEGISLATION
Section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
SUBMISSIONS
As to Ground One
The appellant’s submissions
The appellant submits that in the arbitration, it squarely submitted as to the opinion of the respondent’s former treating neurosurgeon, Dr Rao, that the respondent’s cervical symptoms were in fact emanating from the C3/4 and C4/5 levels of the cervical spine. The appellant asserts that it submitted to the Member that that evidence was inconsistent with Dr Nair’s request for approval of surgery in the form of decompression and fusion in the cervical spine at the C5/6 and C6/7 level. The appellant contends that it clearly submitted to the Member that Dr Rao’s opinion did not support the need for surgery as being reasonably necessary because he had concluded that the pathology causing the respondent’s symptoms was at a different level of the cervical spine to that identified by Dr Nair as being the site of the symptoms requiring surgery.
The appellant contends that the Member completely failed to engage with or refer to that submission at all. The appellant cites Wang v State of New South Wales,[47] (in which the Court of Appeal applied Dranichnikov v Minister for Immigration & Multicultural Affairs[48]) as authority to say that a failure to respond to clearly articulated submissions based on established facts was a constructive failure to exercise jurisdiction. The appellant points to the Member’s acknowledgment that the medical evidence was “complex”, but she proceeded to conclude that a divergence in the medical evidence was not a basis upon which to deny the respondent the treatment recommended by her treating specialists. The appellant further points out that the Member referred to the fact that there were different diagnoses but concluded that she would accept the medical opinions of the respondent’s treating doctors and the respondent’s medico-legal specialist, Dr Bodel.
[47] [2019] NSWCA 263 (Wang).
[48] [2003] HCA 26 (Dranichnikov).
The appellant submits that those reasons were not an adequate response, or any response at all, to the appellant’s submissions. The appellant describes it as “material” that the respondent had two treating specialists, Dr Rao and Dr Nair, who provided markedly different opinions as to the source of the respondent’s symptoms. The appellant asserts that the Member was required to address the submission and provide reasons as to why she preferred the opinion of Dr Nair. The appellant adds that the Member failed to make any finding at all as to what level of the respondent’s spine was injured in the course of her employment.
The appellant further asserts that the Member did not specifically accept the opinion of Dr Nair. It says that the Member merely accepted the opinions of the respondent’s treating doctors, which would include both Dr Rao and Dr Nair, who had distinctly divergent opinions. The appellant contends that the Member’s failure to respond to its clearly articulated submission which was material to the issues constitutes an error of law.
The respondent’s submissions
The respondent says that the appellant acknowledges that Dr Rao was the respondent’s prior treating surgeon. The respondent refers to the Member’s reasons at paragraphs [30] to [31] and submits that it can be inferred that the reference by the Member to the respondent’s treating specialists did not include Dr Rao.
The respondent says that she does not argue against the appellant’s reliance on Wang and Dranichnikov to say that the Member was required to engage with the nature and materiality of the argument in the context of the issues in the proceedings. The respondent asserts that the Member did engage with the submissions in that she accepted that the only treatment option available to the respondent was that proposed by Dr Nair, that is, a cervical discectomy and fusion at the C5/6 and C6/7 levels of the spine. The respondent submits that in a more recent decision of the Court of Appeal, Ming v Director of Public Prosecutions (NSW),[49] the Court observed that the failure to address the issue must be of such significance that it involves a failure to engage with an issue that is important to the resolution of the matter and thus amounts to a failure to exercise the decision-maker’s power.
[49] [2022] NSWCA 209, [15].
The respondent asserts that the legal importance in the matter is the reasonable necessity for the treatment as opposed to other treatment alternatives. The respondent indicates that, in any event, Dr Rao considered that surgical intervention was appropriate and may potentially be of assistance. The respondent further observes that Dr Rao was unsure of the source of the respondent’s symptoms, so it was reasonable for the respondent to seek a second opinion.
The respondent contends that the appellant’s assertion that the Member failed to respond to the clearly articulated argument as to the issue of necessity is misconceived. The respondent refers to the Member’s observations at [30] of her reasons where she said she had considered the conflicting opinions and concluded that the fact that the medical opinions differ was insufficient to persuade her to reject the opinion of Dr Nair. The respondent asserts that the Member did not ignore the appellant’s submission. The respondent says that the Member dealt with the submissions when she concluded at [31] that a divergence of medical opinion does not provide a sufficient basis to deny the respondent the benefit of treatment recommended to her by her treating doctors. The respondent contends that that passage shows that the Member rejected the appellant’s argument because it was unpersuasive. The respondent argues that to suggest that the inconsistency was sufficient to deny liability for the surgery is absurd because the respondent does not seek to have surgery at the C3/4 and C4/5 levels as suggested by Dr Rao.
The respondent submits that the Member determined that the medical opinions were reached on the basis of the recent MRI scan and after a trial of spinal blocks indicated which level of the spine was the pain generator. The respondent points out that Dr Bodel confirmed that the procedure was reasonably necessary.
The respondent refers to the appellant’s submission made at the arbitration that her previous treating specialist expressed a “powerful” opinion which was inconsistent with more recent opinions. The respondent says that the appellant referred to “more antique” MRI studies. The respondent adds that the appellant asserted that the issue was not a legal issue but was a medical question. The respondent submits that there can be no doubt that Dr Nair sufficiently considered and addressed the issue in his ultimate recommendation.
The appellant’s submissions in reply
The appellant submits that the respondent does not appear to dispute that the appellant made detailed submissions in relation to the opinion of Dr Rao and the level of the cervical spine that Dr Rao believed was causative. The appellant refers to the pages of the transcript where those submissions were recorded. The appellant takes issue with the respondent’s assertion that the Member did not ignore those submissions and dealt with the submissions at paragraph [31] of her reasons. The appellant maintains that there was a complete absence of reference to Dr Rao’s opinion or to the appellant’s submission about that opinion in the Member’s reasons.
The appellant refers to the respondent’s reference to Dr Rao being a “prior” specialist and the respondent’s submission that the Member was entitled to prefer the opinions of the respondent’s “current” doctors. The appellant asserts that the Member did not advance those reasons for preferring the evidence of Dr Nair and nor did the Member indicate that Dr Rao’s opinion was of lesser weight or that Dr Rao’s opinion was not accepted because of that reason.
The appellant submits that once a conflict arose between the opinions of the two doctors, the Member was obligated to deal with that conflict and address the submissions made. It submits that Dr Rao’s opinion required consideration, and the Member was in error in failing to address those submissions.
As to Ground Two
The appellant’s submissions
The appellant asserts that the Member’s reasons in respect of her finding that the surgery was reasonably necessary were insufficient. It points to paragraphs [26] to [30] of the Member’s decision, and submits that, in those paragraphs, the Member dealt with the question of injury as defined in s 4 of the 1987 Act. The appellant reproduces paragraph [31] of the Member’s reasons and submits that that paragraph appears to be the only reasoning provided by the Member and those reasons were insufficient in terms of resolving the dispute in respect of the reasonable necessity for the surgery.
The appellant asserts that at paragraph [35], the Member merely states the conclusion that the surgery recommended by Dr Nair was reasonably necessary treatment. The appellant refers to its submissions made to the Member that:
(a) Dr Keller did not accept that the respondent suffered any condition attributable to organic pathology in the cervical spine;
(b) Dr Casikar did not consider that cervical surgery was necessary;
(c) Dr Rao considered the symptoms arose from the C3/4 and C4/5 levels of the spine, which were not the levels identified by Dr Nair in the proposed surgery, and
(d) A/Prof Geevasinga was not convinced that the respondent’s symptoms were referable to an organic disorder related to the cervical degenerative disease.
The appellant points out that Dr Rao and A/Prof Geevasinga were the respondent’s treating specialists. The appellant submits that the Member provided no reasons in relation to those submissions and provided no reasons to support or explain her conclusion that Dr Nair should be preferred over the opinions of those four doctors. The appellant contends that the reasons provided in paragraph [31] of the decision appear to say that it is sufficient to find in favour of the worker if a treating specialist recommends surgery and the worker wishes to undergo that surgery. The appellant indicates that it is unaware of any authority supporting that proposition.
The appellant says that the Member acknowledged that the medical evidence was “complex.” The appellant asserts that in those circumstances, it was not sufficient to simply accept the opinion of Dr Nair, without giving reasons as to why that opinion was preferred to the opinions of Dr Keller, Dr Rao and A/Prof Geevasinga. The appellant submits that the Member determined that she accepted the opinions of the respondent’s treating doctors, without identifying who those doctors were, given that both Dr Rao and A/Prof Geevasinga were the respondent’s treating specialists. The appellant adds that the Member also provided no reasons for preferring the opinion of Dr Bodel.
The appellant quotes from the Court of Appeal authorities of Hume v Watson[50] and Pollard v RRR Corporation Pty Ltd[51] to submit that it was essential for the Member to expose her reasons for resolving a critical issue between the parties. The appellant says that it was entitled to an explanation from the Member as to why she preferred the respondent’s case over that of the appellant, and that it was essential for the Member to expose her reasons for resolving the critical issue between the parties. The appellant asserts that the Member’s reasons do not “do justice to the issues”[52] raised by the appellant.
[50] [2005] NSWCA 148 (Hume), [69].
[51] [2009] NSWCA 110 (Pollard), [58]–[59].
[52] Pollard, [59].
The appellant adds that there was an absence of reasons for the Member’s conclusion that the surgery constitutes reasonably necessary treatment pursuant to s 60 of the 1987 Act and asserts that the Member accordingly fell into error of law.
The respondent’s submissions
The respondent sets out the obligations of a decision-maker to provide adequate reasons for his or her conclusions, as discussed in various authorities. The respondent submits that the resolution of the issue as to whether the proposed surgery is reasonably necessary is a question of fact and requires an “evaluative exercise” with attention given to the history of the treatment provided to the respondent over a number of years by medical practitioners with differing opinions as to the disc levels in the cervical spine that generated the pain.
The respondent contends that the Member did not ignore the appellant’s submissions. The respondent submits that the Member addressed the issue at paragraph [31] of her reasons, in which she acknowledged the complexity of the medical evidence and accepted that there was a possibility of benefit to the respondent. Relying on a decision of Burke CCJ in Bartolo v Western Sydney Area Health Service,[53] the respondent submits that the possibility of a beneficial outcome “should not be forborne”[54] simply because a medical provider who the respondent no longer consults had a different view as to the source of the symptoms.
[53] (1997) 15 NSWCCR 233 (Bartolo).
[54] Bartolo, 238.
The respondent says that attention should be directed to the question of the level of the most serious pathology disclosed in the MRI scans, which was identified at the C5/6 and C6/7 levels of the cervical spine. The respondent points out that the levels causing the pain were clinically confirmed by the nerve blocks which were applied, which were more beneficial for a longer period than the nerve blocks arranged by Dr Rao in 2019.
The respondent submits that “it is better to undergo the procedure recommended by the most recent and trusted medical practitioner … than to do nothing”.[55] The respondent refers to the Member’s reasons at [31] and asserts that the Member was alive to the differences in the opinions from the earlier treating doctors, but the complex medical evidence was not sufficiently persuasive for the Member to deny that the surgery to the C5/6 and C6/7 levels was reasonably necessary.
[55] Respondent’s submissions, [2(i)].
The respondent points to the appellant’s submission that the Member’s reasons at [30] do not “do justice to the issues raised.”[56] The respondent submits that the issue raised by the appellant was a medical issue and not a legal issue. The respondent says that the medical issue was satisfactorily dealt with by the respondent’s treating specialist and his explanation was accepted by the Member.
[56] Respondent’s submissions, [2(k)].
The appellant’s submissions in reply
The appellant refers to the respondent’s submission that the surgery should be directed to the level where there is the most significant pathology and confirmation of the correct level was established by the respondent undergoing nerve blocks. The appellant points out that while those might be reasons for preferring Dr Nair’s evidence, they were not the reasons expressed by the Member. The appellant submits that:
“responding to a complaint regarding adequacy of reasons by referring to the evidence that could have supported the Member’s finding, in circumstances where they were not the reasons given by the Member, is unresponsive to the ground.”[57]
[57] Appellant’s submissions in reply, [25].
The appellant contends that paragraph [31] of the Member’s reasons does not come close to being sufficient reasons for preferring the opinion of Dr Nair and Dr Bodel over those of Dr Casikar, Dr Keller, A/Prof Geevasinga, and Dr Rao. The appellant adds that the respondent asserts that the Member accepted Dr Nair’s explanation that the difference in opinions came about because the doctors were of various specialties. The appellant concedes that the Member cited that part of Dr Nair’s opinion in her review of the evidence but submits that there was no explicit finding by the Member that she accepted the opinion of Dr Nair because of his area of speciality.
As to Ground Three
The appellant’s submissions
The appellant submits that it drew the Member’s attention to the Presidential decision of Diab v NRMA Ltd,[58] and the factors listed in that decision as factors to take into account in assessing whether the proposed surgery was reasonably necessary as a result of the injury. The appellant says that it identified to the Member the factors set out in Diab that indicated that the surgery was not reasonably necessary. That is:
(a) in the context of the conflicting opinions of Dr Rao and Dr Nair, the level of the cervical spine giving rise to the symptoms was in issue;
(b) whether the surgery was appropriate, having regard to the nature of the respondent’s symptoms and condition;
(c) the cost of the surgery;
(d) the availability of alternative treatments, and
(e) the absence of evidence as to the potential effectiveness of the treatment.
[58] [2014] NSWWCCPD 72 (Diab).
The appellant submits that its submissions were material to the issue in dispute and were in fact the central issue for determination. The appellant asserts that the Member, in reaching her conclusion, did not address those submissions at all and did not apply the relevant factors identified in Diab.
The appellant submits that because the reasonable necessity of the surgery was the central issue in the dispute and submissions were made directing the Member to the factors identified in Diab that did not support the respondent’s case, the Member fell into error by failing to consider those submissions and failing to provide any reasons for her conclusion. The appellant refers to paragraph [31] of the Member’s reasons and submits that the closest the Member came to dealing with those submissions was to refer to the “possible benefits” of the surgery but made no finding as to what the possible benefits were and did not address the appellant’s submissions in relation to the factors identified in Diab at all. The appellant further submits that the Member provided no reasons at all in support of her ultimate conclusion that the proposed surgery satisfied the test of being “reasonably necessary.”
The appellant asserts that for those reasons, the Member committed a further error of law.
The respondent’s submissions
The respondent submits that each party made submissions in respect of the factors set out in Diab. The respondent refers to observations made by the Member during the course of the arbitration and recorded on the transcript in respect of the disagreement between specialists and the difficulty the worker has in having to wait for the treatment while liability is being determined. The respondent adds that the Member acknowledged that the parties had submitted in relation to all of the available evidence, before she made her determination.
The respondent submits that the effectiveness of the treatment is not determinative, and the consideration of alternate treatment and the costs of that treatment as submitted by the appellant to the Member “does not displace the Member’s consideration of all of the clinical outcomes observed historically and the alternative conservative approaches that had already been tried [and] failed.”[59]
[59] Respondent’s submissions, [3(g)].
The respondent asserts that, even if Dr Nair had identified the wrong level of the cervical spine, the respondent should not be denied the possibility of the benefit of the treatment. The respondent submits that it is not a matter of simply asking whether it is better for the worker to have the treatment or not, as stated in Bartolo.
The respondent submits that each case will depend upon its own facts. The respondent asserts that in this case, despite the succinct brevity of the Member’s reasons, her approach discloses no error.
The appellant’s submissions in reply
The appellant refers to the respondent’s description of the Member’s reasoning as “succinct” or involving “brevity”. The appellant contends, however, that the Member did not respond to its submissions in relation to why the proposed surgery was not reasonably necessary, and did not address the evidence relied upon by the appellant on that point. The appellant points out that the Member was referred to the factors set out in Diab which supported its case that the surgery was not reasonably necessary. The appellant submits that the Member did not address those submissions and provided no reasons as to why the surgery was reasonably necessary. The appellant submits that the Member’s failure to do so constitutes an error of law.
THE RELIEF SOUGHT
The appellant seeks to have the Member’s decision revoked and requests that the matter be remitted to a different non-presidential member for re-determination of the issues.
The respondent seeks an order confirming the findings made by the Member at [1], [2], and [4] of her Certificate of Determination, and an order confirming the Member’s finding in favour of the respondent in respect of the proposed surgery and ancillary treatment being reasonably necessary.
CONSIDERATION
Ground One: Error of law in failing to respond to clearly articulated arguments
It is apparent from the transcript and it does not appear to be in dispute that the appellant made submissions to the Member that there was a conflict between Dr Nair’s opinion and that of Dr Rao, in that Dr Rao believed the symptoms emanated from the C3/4 and C4/5 levels of the cervical spine and Dr Nair proposed surgery to the C5/6 and C6/7 levels. The appellant asserts that the Member was obliged to address those submissions, relying on Wang.
In Wang, it was asserted that the primary decision-maker had failed to address Mr Wang’s written submissions, which were described as “clearly articulated arguments relying on established facts.”[60] McCallum JA (as her Honour then was) (Macfarlan and Meagher JJA agreeing) observed that (citations omitted):
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.
…
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd.”[61]
[60] Wang, [62].
[61] Wang, [63]–[64].
Her Honour proceeded to identify “two particular submissions made by [Mr Wang] which were material to the outcome and which were not addressed by the trial judge”.[62] Thus, in the present case, for the appellant to succeed in this ground of appeal, the appellant’s submissions must be of a character that they were material to the outcome, which was whether or not the proposed surgery was reasonably necessary. The appellant asserts that its argument that the respondent had two treating specialists, Dr Rao and Dr Nair, whose opinions as to the source of the respondent’s symptoms were markedly different, was a material argument.
[62] Wang, [65].
The Member’s task was to assess whether the proposed surgery was reasonably necessary. As Burke CCJ in Rose v Health Commission (NSW)[63] said:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, …”[64] (my emphasis).
[63] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[64] Rose, 48A–C.
In his report directed to Dr Kumar dated 1 July 2019, Dr Rao, the respondent’s treating neurosurgeon, advised that he was not sure of the source of her multiple symptoms but considered that there was significant evidence that the C3/4 and C4/5 levels were mainly responsible for her neck and arm symptoms.[65]
[65] ARD, p 405.
In reviewing the evidence produced by the parties, the Member noted that “[t]he respondent relied upon the competing opinions of Dr Keller and [A/Prof] Geevasinga to deny liability and the divergence of medical opinion held by the [respondent’s] treating doctors.”[66] The Member summarised the appellant’s submissions as to the inconsistent histories of the onset of symptoms provided to the various medical practitioners. The Member added:
“In summary the [appellant] submits that this is an application with a complicated medical causation issue involving conflicting medical opinions and that in these circumstances the Commission would have difficulty in finding injury in the course of employment or that the recommended treatment was reasonably necessary.”[67]
[66] Reasons, [19].
[67] Reasons, [24].
The Member said at paragraph [30] of her reasons that she had “considered the conflicting medical opinions provided by the parties.” She referred to the “complexity” of the medical evidence and at paragraph [31] of her reasons observed:
“However, complexity or a divergence [of] medical opinion, is not a sufficiently persuasive reason in the circumstances of this application to deny the [respondent] the possible benefits of treatment recommended by her specialists treating doctors. Whilst there are different diagnoses provided, I have determined to accept the medical opinions proffered by the [respondent’s] treating doctors and the [independent medical examiner] Dr Bodel.”
The respondent asserts it can be inferred from those reasons that the reference by the Member to the respondent’s treating specialists did not include Dr Rao. I do not accept that such an inference can be drawn. The Member was well aware that Dr Rao treated the respondent in 2019 and at no time did she explicitly or impliedly exclude him from the cohort of the respondent’s treating doctors. What is apparent from the Member’s reasons is that she did not engage with the appellant’s submissions that Dr Rao did not provide support for the surgery proposed by Dr Nair and that she was required to “have regard to medical opinion as to the relevance and appropriateness of the particular treatment.”[68]
[68] Rose, 48C.
I am of the view that, in order to determine whether the proposed surgery was reasonably necessary, the Member was required to engage with the appellant’s submissions. The appellant’s argument was materially relevant to the question of whether the proposed surgery was reasonably necessary and the Member’s acceptance of “the medical opinions proffered by the [respondent’s] treating doctors” discloses that she did not sufficiently grapple with that evidence. It follows that Ground One of the appeal succeeds.
Ground Two: Error of law in failing to provide adequate reasons
The appellant complains that the Member’s reasons were insufficient to resolve the dispute between the parties. The appellant asserts that paragraph [31] of the Member’s reasons appears to be the only reasoning in respect of the dispute as to whether the surgery was reasonably necessary, and in paragraph [35], the Member merely states her conclusion that the surgery proposed by Dr Nair was reasonably necessary.
The appellant refers to its submissions about the evidence of Dr Keller, Dr Casikar, A/Prof Geevasinga and Dr Rao, two of whom were the respondent’s treating specialists, who did not support the proposed surgery. The appellant says that the Member failed to give any reasons when dealing with that evidence or any reasons explaining why she preferred the evidence of Dr Nair.
The respondent points to the Member’s reasons at [31], which the respondent says were sufficient to show that the Member was alive to the differences in the medical experts’ opinions. While the Member may have been alive to that evidence, that is not sufficient to show that the Member provided adequate reasons for preferring the opinion of Dr Nair over the various medical specialists referred to by the appellant.
The respondent otherwise puts forward reasons that might have supported the Member’s conclusions. The Member did not provide the reasons suggested by the respondent in the respondent’s appeal submissions, and the submission is thus not responsive to this ground of appeal.
Section 294 of the 1998 Act imposes a statutory obligation on a Member to provide reasons for his or her decision. Rule 78 of the Personal Injury Commission Rules 2021 sets out the requirements which are to be included in a Member’s statement of reasons.
An analysis of whether there has been a failure to provide adequate reasons requires a number of considerations to be taken into account. A useful summary of the principles enunciated in various authorities was provided by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard in which her Honour said as follows (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.
The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another’.”[69]
[69] Pollard, [56]–[59].
Relevantly, in the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq),[70] Kirby J observed that where there is evidence in support of a party’s case, that evidence must be considered in the reasoning process in a satisfactory way.[71]
[70] [1999] HCA 3 (Earthline Constructions).
[71] Earthline Constructions, [94].
Equally relevant to this case, Ipp JA (with Mason P agreeing) in the Court of Appeal decision in Goodrich Aerospace Pty Limited v Arsic said:
“It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”[72]
[72] [2006] NSWCA 187, [28].
In accordance with the above authorities, it was essential for the Member to consider the appellant’s evidence as to whether the surgery was reasonably necessary in her reasoning process and to disclose her reasons for determining that she preferred the evidence of Dr Nair over that of the opinions relied upon by the appellant. It is not apparent from the Member’s reasons as to why she preferred the evidence of Dr Nair or why she reached the conclusion that the proposed surgery was reasonably necessary. It is also not apparent as to whether she considered the evidence relied upon by the appellant and it is simply speculative to conclude as to why that was so. The Member has fallen into error by failing to provide adequate reasons for her conclusions and this ground of appeal succeeds.
Ground Three: Error of law in failing to address the appellant’s submissions as to whether the treatment claimed was reasonably necessary
The appellant refers to its submissions as to the factors to take into account when assessing whether the surgery was reasonably necessary, as set out by Roche DP in Diab, and submits that the Member failed to address those submissions and did not apply those factors, which were relevant. The appellant says that the Member’s only reference to the factors in Diab was her reasoning at paragraph [31], in which she referred to the “possible” benefits, without identifying them.
The Member did not refer at all to Diab. While it was not a requirement to apply all of those factors, they are described by Roche DP as “useful heads of consideration.” The appellant made submissions about the factors that the Member did not address in her reasoning process. I have set out above the obligation of a decision-maker to address the parties’ submissions and provide reasons why the submissions were not accepted. The Member’s conclusion at [31] of her reasons was that the “divergence of medical opinion is not a sufficiently persuasive reason … to deny the [respondent] the possible benefits of treatment recommended by her specialists”. That appears to be the same approach taken by Burke CCJ in Bartolo. In Diab, Roche DP observed that “it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not.” [73] The Bartolo approach is therefore no longer good law.
[73] Diab, [90].
In any event, the appellant made submissions in respect of the application of certain factors in Diab, which were relevant to the issue in dispute, and the Member did not address those submissions. It follows that the Member fell into error and this ground of appeal is made out.
CONCLUSION
The appellant has established error on the part of the Member in respect of all three grounds of appeal. Determination [3] and Order [1] of the Member’s Certificate of Determination are therefore revoked.
The appellant seeks to have the matter remitted to a different non-presidential member for re-determination. The re-determination of the issue as to whether the proposed treatment is reasonably necessary is a factual determination. In addition, the respondent has a further medical report that she wishes to lodge. In the circumstances, I consider it appropriate for the matter to be remitted to a different non-presidential member re-determination.
In addition, I consider it appropriate to make an order that the respondent lodge with the Commission an amended index and annexures to the ARD, limited to the documents that are relevant to the issues in dispute in this case.
The documents annexed to the ARD comprised of more than 800 pages. Many were totally irrelevant to the issues in dispute and some in fact related to highly personal health matters pertaining to the respondent. As can be seen from the pinpoint references in the above summary of the evidence, the evidence annexed to the ARD that was in fact relevant to the issues in dispute was presented in such an illogical and haphazard fashion that it would not have been surprising if important evidence, such as (in this case) the radiological investigations or other probative medical evidence, had been overlooked. Legal practitioners have a responsibility to present the evidence in a professional manner. In this case the presentation was unacceptable.
DECISION
Determination [3] and Order [1] of the Member’s Certificate of Determination dated 27 May 2024 are revoked.
The Certificate of Determination is otherwise confirmed.
The issue as to whether the surgery proposed by Dr Nair is reasonably necessary as a result of the injuries is remitted to a different non-presidential member for re-determination.
The respondent (the applicant below) is to lodge with the Commission and serve on the appellant (the respondent below) an amended Index to the Application to Resolve a Dispute with attached annexures that are limited to the evidentiary documents that are relevant to the issues in dispute in this case within 21 days of the issue of this decision.
Elizabeth Wood
DEPUTY PRESIDENT
1 April 2025
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